Use of CPLR 4401 Motion During Trial

In Botwinik v. Moseson, after the jury was empaneled, but before opening statements, the defendant orally moved in limine to preclude plaintiff's expert nurse from testifying on the basis that the nurse was not qualified to give a medical opinion on the issue of lack of informed consent (CPLR 4401-a). The plaintiff cross-moved to substitute the testimony of a physician if the court determined that the nurse's testimony would be insufficient. The court granted the defendant's motion and dismissed plaintiff's case.

On appeal, the First Department reversed. The Court noted that a CPLR 4401-a motion must be made "at the end of plaintiff's case" (see also CPLR 4401 - motion "after the close of evidence presented by an opposing party"). Here, since the motion was made before plaintiff had the opportunity to present her case, the trial court abused its discretion when it granted the defendant's motion.

The Court also observed that courts favor disposition of cases on their merits, rather than on oral application made while the jury is waiting (see Murray v. Brookhaven Mem. Hosp. Med. Ctr, 73 A.D.3d 878 [2010]).